Gilmore Finance Pty Ltd v Aesthete Pty Ltd [2022] NSWCA 279

Gilmore Finance Pty Ltd v Aesthete Pty Ltd [2022] NSWCA 279

The appeal was dismissed as incompetent because the only substantive relief sought—the removal of the trustees—did not involve an issue exceeding $100,000 as required by s 101(2)(r) of the Supreme Court Act 1970 (NSW) for an appeal as of right. Leave to appeal was refused because Gilmore Finance, having the benefit of independent legal advice, had given fully informed consent to the arrangements concerning legal and non-legal fees and the conflict of interest. No breach of trust was established and therefore no basis for the removal of the trustees existed.

Parties
Applicant: Gilmore Finance Pty Ltd; First Respondent: Aesthete Pty Ltd atf the Real Money Unit Trust; Second Respondent: Aesthete No. 3 Pty Ltd atf the Hospital Precinct Unit Trust; Third Respondent: Farshad Amirbeaggi; Fourth Respondent: Vashti Elizabeth Conway; Fifth Respondent: Kate Elizabeth Yates
Jurisdiction
Australia
Judgment Date
21 December 2022
Procedural Posture
Appeal / Judgment on Appeal and Application for Leave
Outcome
Appeal dismissed as incompetent; leave to appeal refused
Legal Topics
Removal of Trustee, Informed Consent by Beneficiary, Costs of Proceedings, Appeal Competence, Conflict of Interest
Equity Trusts Civil Procedure Removal of Trustee Informed Consent by Beneficiary Costs of Proceedings Appeal Competence Conflict of Interest

Case Brief

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Parties

Gilmore Finance Pty Ltd

Applicant

Aesthete Pty Ltd atf the Real Money Unit Trust

First Respondent

Aesthete No. 3 Pty Ltd atf the Hospital Precinct Unit Trust

Second Respondent

Farshad Amirbeaggi

Third Respondent

Vashti Elizabeth Conway

Fourth Respondent

Kate Elizabeth Yates

Fifth Respondent

Procedural Posture

Appeal / Judgment on Appeal and Application for Leave

Legal Issues

  1. 1 Whether the appeal as of right was competent given the amount in issue
  2. 2 Whether leave to appeal should be granted on grounds of alleged breach of trust relating to approval of legal fees in a conflict of interest situation
  3. 3 Whether there was fully informed consent by the beneficiary (Gilmore Finance) to the conflict and the fees approved

Ratio Decidendi

The appeal was dismissed as incompetent because the only substantive relief sought—the removal of the trustees—did not involve an issue exceeding $100,000 as required by s 101(2)(r) of the Supreme Court Act 1970 (NSW) for an appeal as of right. Leave to appeal was refused because Gilmore Finance, having the benefit of independent legal advice, had given fully informed consent to the arrangements concerning legal and non-legal fees and the conflict of interest. No breach of trust was established and therefore no basis for the removal of the trustees existed.

Court Disposition

Appeal dismissed as incompetent; leave to appeal refused

Orders

  • Notice of appeal filed 10 August 2022 dismissed as incompetent.
  • Summons seeking leave to appeal filed 9 September 2022 dismissed.